Why a Potemkin “competition” to the Constitutional Court may drag Ukraine back to Yanukovych’s times

Inauguration of President Yanukovych. Photo: chasipodii.net 

Op-ed, Politics, Ukraine

The run-up to holidays in Ukraine is traditionally a time to make important decisions, and this New Year’s Eve is no exception. While all attention is focused on preparations for the holidays, the Presidential Office (PO) published its list of candidates for the positions of judges of the Constitutional Court. Together with candidates put forth by the Verkhovna Rada (Parliament), these judges have the power to drag Ukraine back to the times of President Yanukovych.

According to research carried out by the Ilko Kucheriv Democratic Initiatives Foundation (IKDIF) and The Kyiv International Institute of Sociology (KIIS), average Ukrainians are wary of who can bring real reform to the judiciary of the country: 47% feel that representatives of civic organizations can do this; 29% feel that international experts can bring about reform; lawyers and other legal professionals who are not sitting judges have the support of 23%; and only 8% of those asked believe that currently sitting judges can be trusted to change the system. Currently, however, judges are elected and judged by other judges, and if recent moves of the PO are any indication, there are no major changes on the horizon.

The competition which doesn’t influence the decision

In 2016, President Petro Poroshenko launched key initiatives to reform the judiciary of Ukraine, and included in these were changes to the Constitutional Court. In particular, these reforms saw judges being appointed to the Constitutional court via competition. However, this idea stalled in the preparation stage, and thus far no real reforms have taken place. Euromaidan Press talked to the experts of DEJURE foundation – one of the NGOs which has worked on the issue.

The structure of the Constitutional Court has not changed – it is comprised of 18 judges, 6 of whom are appointed by the PO, 6 chosen by the Verkhovna Rada, and 6 by the Congress of Judges.

Traditionally, the PO and Verkhovna Rada appointed judges who were political allies, thus completely dependent on them. And the Congress of Judges as well. That was the reason for all our previous troubles in the Constitutional Court, including those of 2010 when Yanukovych usurped power,” said the Director of the DEJURE foundation Mykhailo Zhernakov.

To prevent this from happening again, the reforms put forth in 2016 envisaged appointing judges according to a competition.

To that end, criteria like ‘recognized lawyer’ and ‘high moral qualities’ were written into the Constitution. The law is silent, however, on how these terms are defined and who judges the candidates,” adds Zhernakov.

He goes on to say that according to the law which was created and submitted by President Poroshenko, the competition of judge is in no way regulated. A Competition Commission creates a list of recommended candidates, and submits it to either the PO, Verkhovna Rada, or Congress of Judges. However, none of these bodies are bound to choose from the candidates on the list, and can appoint anyone they like.

“It is designed to give the impression of a competition,” says Zhernakov, “and the Venice Commission said exactly that.”

The judges and the procedure

The Constitutional Court. Photo: ccu.gov.ua

The question at the top of the agenda is the appointment of four judges by the PO and four by the Verkhovna Rada. The Rada has a Committee on Legal Policy and Justice – this committee creates a list of candidates, two of whom will be ratified by the MPs. However, the Rada does not have to stick to the committee’s recommendations. This vote is expected to take place soon.

There is absolutely no procedure outlined for the commission which suggests the candidates to the PO. None at all. The president created the idea of the competition commission, chose the members of the commission, and showed them the direction. We simply do not know what the commission was doing – what system it used for rating the candidates, nor how it handled any paperwork. We do know that it made interviews, however these were all carried out behind closed doors and information was only made public afterwards,” says Andriy Khymchuk, an expert member of the DEJURE foundation.

The commission’s list of 6 suggested candidates was belatedly posted by the website of the PO on 23 December 2017. On it, the candidates are listed in order of significance. The third candidate in the list is Anzhelika Krusian, who is believed to be a favorite of the PO. Many civil groups consider her a candidate who is politically dependent on President Poroshenko. Krusian is the head of a department at the National University ‘Odesa Law Academy,’ the president of which is Serhiy Kyvalov. Kyvalov himself is a politician who is a throw-back to the times of Yanukovych. In 2004, he was the head of the Central Election Commission of Ukraine, which recognized Yanukovych as the winner of the presidential elections – a decision which sparked the Orange Revolution. Somehow, Kyvalov has managed to stay in power, and is extremely influential in the Odesa Oblast.

Serhiy Kyvalov. Photo: skelet-info.org

To work in [The Odesa Law] Academy, one has to be completely loyal to Kyvalov,” says Zhernakov.

Still, the president is not obliged to stick to the recommended list at all.

As the law – as it is written now – does not provide a mechanism for evaluating or judging potential appointees to the Constitutional Court, civil activists have taken this role upon themselves. DEJURE, together with Center of Policy and Legal Reform (CPLR) took a look at the candidates vis-a-vis the criteria, as they are written in the law:

“We judged the candidates according to ‘high moral qualities,’ but also we checked their e-declarations, potential conflicts of interests, and potential areas of nonconformity to the criteria of integrity,” says Zhernakov.

Khymchuk continues:

“Many candidates did not declare property which they owned – finished or unfinished houses, or other types of real estate. One of the candidates declared that she is self-employed, but we found out that she works at a university and did not declare it. Also, there were candidates who did not pass the law test during the competition to the Supreme Court, but are still candidates in the competition to the Constitutional Court.”

Krusian, on the list put forth by the PO, should not have been admitted to the competition at all, as she did not fill out the declaration in time.

“Another negative aspect of this competition is that there are no administrative or criminal penalties for perjury or negligence. Therefore, candidates can lie when they fill out declarations. The only thing we can hope is that any falsehoods are made public by the National Agency for Prevention Corruption [NAZK]. If NAZK follows up on our complaints, everyone will know what we found,” says Khymchuk.

Expert point out another bizarre incident – two of the candidates put forth by the PO were earlier rejected by the commission of the Verkhovna Rada, because they did not meet the standards required there.

The NGOs tried to communicate their conclusions to the decision makers.

“When the judges are appointed, we will see whether we were heard,” says Zhernakov, and adds that the law does not foresee any official involvement of NGOs in the decision making process.

Consequences may be irreversible

Activists warn that the appointment of politically motivated and allied judges to these 4 seats on the Constitutional Court might lead to irreversible consequences:

“If, during this round of appointments, 1 or 2 ‘controlled’ judges are appointed, they – together with the ‘controlled’ judges who already sit on the court – will be able to form a majority, which will allow them to dismiss any of their colleagues.

This, in turn, will allow them to make sure the court always rules in favour of the President (traditionally, it has been the President who benefits most from the decisions of the Constitutional Court). This may lead President Poroshenko to believe that he controls the Court, however there are currently sitting judges who were present and voted for the usurpation of power by President Yanukovych in 2010. If candidates who are loyal to Kyvalov are approved, it is foreseeable that they may rule laws dealing with Lustration (prosecution of criminal activity by the government of President Yanukovych) and other judicial reforms unconstitutional,” says Zhernakov.

And ominous signs have been coming from the Court. Recently, it ruled to allow those who voted for the “Dictatorship Laws” of 16 January 2014 to work as Presidents of Universities. The “Dictatorship Laws” restricted the rights of citizens, and gave the government powers to punish of the participants of the Euromaidan protests. Kyvalov was one of those who voted for these “Dicatorship Laws.” Because of this new ruling, however, he will be able to continue to head the Law Academy with no fear.

There is tension in the Constitutional Court itself – no Chief Justice has been chosen in over a year and a half. Zhernakov explains why:

“So far there is a fine balance between, let’s call them progressive, pro-Ukrainian judges, and those who are pro-Russian, and in fact still loyal to Yanukovych. Currently, the acting Chief Justice is Viktor Kryvenko, who is a political ally, a ‘dependant’ of Kyvalov. Some of the judges support him. Another part is ready to vote for a person who is more moderate, more adequate. If a few allies of Kyvalov are appointed to the court, tomorrow we might see the Court ruling to appoint Kryvenko as a Chief Justice permanently, and the day after tomorrow it may rule to return President Yanukovych, and declare the Euromaidan Revolution a coup.”

Judicial lessons of the year

Prior to this “competition” to the Constitutional Court, a new Supreme Court was created. Many civic organizations and activists declared it a failure. After the competition to the Supreme Court took place, activists loudly voiced their concern – for three months. According to these organizations, one in every four candidates to the Supreme Court did not meet the standards of personal integrity and professional ethics. Midway through the competition process, representatives of civic organizations also pointed out crucial violations committed during the selection process. The activists pointed out that violations were carried out to effect the appointment of judges whom the government wanted appointed.

Read also: Civic watchdog in Ukraine: we were used to legitimize dishonest Supreme Court appointments

When discussing the competition to the Supreme Court, Ukraine’s international partners keep repeating that the selection process was fair but some dishonest candidates managed to get appointed. When asked if he thinks that the PO managed to fool even international partners, Zhernakov replies “yes,” but adds other possible reasons why international partners may think that way:

  • International partners want to believe that reforms are progressing;
  • Many partners had given money for reform – by admitting that the reforms failed, the partners would have to admit that their money was wasted.

“Yes, international projects helped, but not one of them had any serious influence. Nobody even had the status of an observer,” says the expert.

He goes on to warn that the situation can be repeated quite soon – when the National Anti-Corruption Court is created.

Another irregularity – the text of the bill was published less than a week before the New Year.

“According to the bill, there will be no Public Integrity Council [a body made up of civil society representatives, to assist the High Qualification Commission of Judges in the selection process, in particular checking whether candidates meet the criteria of integrity and professional ethics], but that role will be given to international experts,” explains Zhernakov.

Read more: Will Ukraine’s Anti-Corruption Court be another imitation of reforms?

To involve international experts to the process was a recommendation of the Venice Commission:

“The Commission recommended giving international experts key roles, rather than sideline, advisory roles. See the difference – a key role, rather than something which you might even not take into consideration,” emphasizes the expert.

The expert also points out that the bill is the full responsibility of the Presidential Office. Even OSCE has stated that it has nothing to do with the creation of the bill, despite the fact that originally the bill was to have been joint project.

“It said that there were some civilian representatives working on it. I do not know in what capacity, even though I know every society representative who is involved with the judiciary,” adds Zhernakov.

In summarizing all the changes which took place in the judiciary this year, the expert gives his conclusion:

“I can’t say that it was a reform. I would actually call it steps in the opposite direction. First, we wasted time. Second, instead of giving more independence and more accountability to judges, we made them less independent and reduced their accountability. Even though it was called something else, the same political appointments were taking place – maybe even more so than before.”

However, many political and legal activists are not giving up. They continue the fight for a fair judiciary which includes:

  • Changing of the procedures of how judges are selected;.
  • Changing how judges judge themselves;
  • Fighting to give a key role in the judicial selection process to organizations and institutions whom society trusts the most.

 

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